Faruq (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of a Regional Employer Nomination (Permanent) (Subclass 187) visa. The applicant had been employed as a Chef by a business that subsequently changed ownership. The core of the dispute revolved around whether the applicant continued to meet the criteria for the visa following this change in management and the withdrawal of the nomination by the new owner.

The Tribunal was required to determine whether the applicant satisfied clause 187.223 of the Migration Regulations 1994, specifically subclause 187.223(2), which stipulates that the person who will employ the applicant must be the person who made the nomination. Further, the Tribunal had to consider whether the nomination had been approved and had not been subsequently withdrawn, and if the nominated position remained available to the applicant. The applicant's explanation that the business had changed hands and the new owner indicated an unwillingness to continue sponsorship was central to these considerations.

The Tribunal affirmed the decision to refuse the visa. The reasoning was based on the fact that the original nomination had effectively been withdrawn by the new owner of the business, who was not the original nominator. This directly contravened the requirement under clause 187.223(2) that the employer must be the nominator. Furthermore, the applicant's evidence indicated that the nominated position was no longer available under the terms required for the visa application, as the new owner expressed an intention to employ only Australian staff. Consequently, the Tribunal found that the applicant did not meet the primary criteria for the visa.

As the primary applicant failed to satisfy the criteria for the Subclass 187 visa, the Tribunal also found that the secondary applicants, who were family members, did not meet the requirements of clause 187.311, which mandates that a secondary applicant must be a member of the family unit of a person who has satisfied the primary criteria. Therefore, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.